E VISAS FOR INVESTORS AND ENTREPRENEURS

Entrepreneurs and investors may have several options to stay legally in the United States. It is important to look at all visa possibilities and consider the benefits and drawbacks of each before making a decision about which options to pursue. E visas for Investors & Entrepreneurs are available to the following groups:

Our immigration law firm is very active in this area of the law; our team has been asked to give presentations and author articles on visa issues for entrepreneurs. We also advise entrepreneur clubs at many colleges and universities. This page is a resource for foreign nationals who are considering applying for a visa in one of these categories.

E-2 TREATY INVESTOR VISA

The E-2 Treaty Investor visa exists for citizens of countries that maintain treaties of commerce and navigation with the United States. In order to qualify for an E-2 visa the applicant must be coming to the U.S. to oversee the operations of an enterprise in which they have invested.

The applicant’s spouse and children under age 21 may apply for derivative E-2 visas. The spouse is eligible for work authorization, children are not. The duration of E visas is governed by the treaty, and by diplomatic reciprocity tables.

A qualifying E-2 company can also apply for E-2 visas for specialized essential employees, executives, or managers who are nationals of the treaty country and whose services are required in the US.

BASIC REQUIREMENTS

Investor must have control of the funds, and investment must be “at-risk”

Investor must have controlling interest, and intend to develop and direct the enterprise

Enterprise must be more than marginal

E-2 investments are not formulaic. There is no minimum investment, number of employees, and no required size or type of business. There is a great deal of flexibility on how the investment funds are deployed.

At the same time, some of the requirements can be very restrictive. There is no flexibility on the nationality of the business or owners, or on the ownership percentage or role of the investor applicant in the business.

BUILDING A STRONG E-2 CASE

If you have an idea and the entrepreneurial drive to execute, along with access to a modest amount of capital (and are a national of an E-2 treaty country), you can potentially build an E-2 case.

Strong E-2 cases tell a compelling story – it is as much a sales pitch as it is a legal case. The business plan must convey the entrepreneurial spirit of the investor and the positive local, regional, or national economic impact. Presentation is important. The business plan and analytical cover letter must be concise and organized.

E-1 TREATY TRADER VISA

The E-1 Treaty Trader visa exists for citizens of countries that maintain treaties of commerce and navigation with the United States. In order to qualify for an E-1 visa the applicant must be coming to the U.S. to conduct trade between the U.S. and the treaty country.

The applicant’s spouse and children under age 21 may apply for derivative E-1 visas. The spouse is eligible for work authorization, children are not. The duration of E visas is governed by the treaty, and by diplomatic reciprocity tables.

BASIC REQUIREMENTS

The E-1 Treaty Trader visa is used much less often than the E-2. The E-1 exists for a company that has substantial trade with the owner’s home country. This trade can be goods, technology, or services.

Nationality – you must be a citizen of a treaty country. See the list here: treaty countries.

The trading firm you work for must have the nationality of the treaty country (must own at least 50%)

Trade must be substantial

More than 50% of the international trade must be between the U.S. and the treaty country

You must be an essential employee, employed in a supervisory or executive capacity, and must possess specialized skills essential to the firm.

EB-5 IMMIGRANT VISA

Investors may have the option to live permanently in the US by pursuing a “green card” through the EB-5 immigrant visa category. By investing between $500,000 and $1 million dollars in a US enterprise and creating or saving 10 US jobs, an investor and his or her spouse and unmarried children under age 21 can receive green cards. Each year 10,000 immigrant visas are allotted for the EB-5 program, with 3,000 reserved for investment through a designated Regional Center. There are no regulations restricting the nationality of EB-5 investors.

Obtaining a green card via EB-5 is a three part process. First, the EB-5 petition (I-526) must be filed and approved. Following the approval, an investor and family can pursue conditional permanent residency by filing for adjustment of status in the US or by obtaining immigrant visas at a US consulate. During the two-year period of conditional residency, the investor must sustain the EB-5 investment, the new commercial enterprise, and the 10 newly created jobs. If all 10 jobs were not created at the filing of the I-526, the investor must show that these jobs actually have been created or will be created in a reasonable amount of time. To remove the conditions on permanent residency, within 90 days before the conditional permanent residency expires, the investor must file form I-829 to request that the conditions are removed. Once the I-829 is approved, the investor and family will receive new green cards without conditions.

BASIC EB-5 REQUIREMENTS

Investment in a “New” Commercial Enterprise – Investment must be in an enterprise formed after November 29, 1990, unless the investor will engage in a significant restructuring or expansion of a business formed prior to that date.

Engage in a “New” Commercial Enterprise – The investor must engage in the day-to-day operations and/or policy formation of the business. It is not enough to be a strictly passive investor.

Amount of Capital – $1 million is the standard investment amount, which may be adjusted downward to $500,000 if the business lies in a “targeted employment area” (TEA). To qualify as a TEA, an area must either be considered rural, based on its proximity to a Metropolitan Statistical Area, or have an unemployment rate that 150% of the national average.

When Funds Must be Invested – At the time of filing the EB-5 petition, the investor must have invested or “be in the process of investing.” Further, the investment funds must be considered “at risk.”

Lawful Source of Funds – It will be necessary to provide a complete accounting of the lawful source of the invested funds, back to their original acquisition by the investor. The investor must also demonstrate that he or she was in control of the funds when they were transferred to the enterprise.

Job Creation – The investor must create or save at least 10 jobs for full-time US workers, excluding the investor and the investor’s spouse or children. If the investment is made through the Regional Center Pilot Program, the jobs do not need to be at the new commercial enterprise but can be indirectly created in the larger economy. At the time of filing the EB-5 petition, the investor must demonstrate that the jobs exist or provide a comprehensive business plan that requires the creation of 10 jobs by the end of the conditional permanent residency period. In order “save” jobs to satisfy the job creation requirement, the business must qualify as “troubled.”

Regional Center Pilot Program – The Regional Center Pilot Program is designed to attract US investment by allowing investors to pool their funds together in commercial projects designed to improve a particular region’s economy. EB-5 investment projects within USCIS designated regional centers must fulfill all of the category requirements discussed above, except the jobs can be created indirectly. If a regional center will have indirect job growth for EB-5 purposes, this must be demonstrated using an appropriate economic model. Many regional centers also do not require the investor to manage the day-to-day operations of the business. Instead, investors can advise on the project’s policy formation through the role of a limited partner.

DUE DILIGENCE: ARE YOU READY FOR EB-5?

Applying for a green card in the EB-5 category is a significant undertaking and requires assembling a team of professionals to provide the needed expertise. An investor should conduct his or her due diligence by answering the following questions before starting an EB-5 petition:

Do I have the financial means to comfortably make the required investment?

Have I consulted with a tax attorney who specializes in international taxation issues regarding the implications of my investment?

Have I consulted with an experienced EB-5 immigration attorney who will prepare and file my petition and guide me through the process?

Will I invest in a regional center or in my own new commercial enterprise that I will operate on a day-to-day basis?

If I will operate and invest in my own business, does my EB-5 immigration attorney believe that my proposal fulfills the EB-5 category requirements?

If I plan to invest in a regional center, have I consulted with a financial professional regarding the soundness of the project as an investment product?

Do I truly plan to immigrate to the US?

What is my timeline for immigrating to the US?

Will I be able to produce documentation of the lawful source of the invested funds?

Curran & Berger LLP

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Our firm assists individuals and institutions across the U.S. with their immigration needs.